People v. Holveck

• Decision Date: 21 November 1990
• Docket Number: 67443,Nos. 67290,s. 67290
• Citation: 141 Ill.2d 84,152 Ill.Dec. 237,565 N.E.2d 919
• Parties: , 152 Ill.Dec. 237 The PEOPLE of the State of Illinois, Appellant, v. Dennis HOLVECK, Appellee.
• Court: Illinois Supreme Court

Page 919

565 N.E.2d 919

141 Ill.2d 84, 152 Ill.Dec. 237

The PEOPLE of the State of Illinois, Appellant, v. Dennis HOLVECK, Appellee.

Nos. 67290, 67443.

Supreme Court of Illinois.

Nov. 21, 1990.

Rehearing Denied Feb. 4, 1991.

Neil F. Hartigan, Atty. Gen., Springfield, and Richard M. Daley, Cecil A. Partee and Jack O'Malley, State's Attys., Chicago (Terence M. Madsen, Asst. Atty. Gen., Chicago, and Inge Fryklund, Judy L. Groeneveld and Renee Goldfarb, Asst. State's Attys., and Marie Quinlivan Czech, Sp. Asst. State's Atty., of counsel), for the People.

Randolph N. Stone, Public Defender, Chicago (Z. Peter Tokatlian, Asst. Public Defender, of counsel), for appellee.

Dennis G. Holveck, Pontiac, pro se.

Justice WARD delivered the opinion of the court:

The motion of the defendant, Dennis Holveck, to quash his arrest and to suppress evidence arising from two separate incidents of sexual assault on minors was denied by the trial court in the circuit court of Cook County. The appellate court reversed and remanded for a new trial. (171 Ill.App.3d 38, 54, 121 Ill.Dec. 25, 524 N.E.2d 1073.) We granted the State's petition for leave to appeal (107 Ill.2d R. 315) and now affirm the judgment of the appellate court.

The defendant, Dennis Holveck, was charged with and found guilty on two counts of deviate sexual assault (Ill.Rev.Stat.1981, ch. 38, par. 11-3(a)), two counts of aggravated indecent liberties with a child (Ill.Rev.Stat.1981, ch. 38, par. 11-4.1(b)(1)(B)), and two counts of unlawful restraint (Ill.Rev.Stat.1981, ch. 38, par. 10-3).

The charges stem from two separate incidents. The first incident (Docket No. 67443) occurred on November 1, 1983, in Streamwood, Illinois, and involved a five-year-old boy, M.S. On that day, while M.S. was walking home from kindergarten, a man in a car called to him and told him, "Come here, I have to show you something." Once M.S. reached the car, he noticed that the man's pants were unzipped and that the man was exposed. The man told M.S. that M.S. could not go home unless he placed his mouth on the man's penis. When M.S. tried to get away, the man grabbed the boy's hood. Eventually, M.S. got away from the man, ran home, and told his mother what happened. M.S. described the man as having a moustache and curly brown hair, but he could not describe the car or estimate the man's age in relation to his father.

The second incident (Docket No. 67290) occurred on November 16, 1983, in Barrington, Illinois, and involved three five-year-old girls: J.L., J.W., and J.B. On that day, the three girls were walking to kindergarten when a man in a car asked the girls if they wanted a ride. The three girls got into the man's car. At this time, J.B. noticed that the man's pants were unzipped. While the car was in motion, the man shouted that, if they wanted to get out of the car, they would have to fondle his genitals. J.W. testified that she saw J.B. touch the man's penis and saw J.L. put her hand and mouth on it. When the man released the girls, J.L. spit "stuff" out of her mouth.

On November 18, 1983, the defendant's car was stopped by a Streamwood police officer, Officer Robert Buschbacher. At roll call, the officers had been instructed to be on the lookout for a gray car with a specific license number "that had been seen acting suspiciously" in connection with an investigation involving an unidentified person who had picked up children. They had been instructed not to make an arrest but simply to stop the car. Officer Buschbacher first noticed a parked car fitting the description. Officer Buschbacher saw two men get into the car. After the car pulled away, Officer Buschbacher stopped the car though the officer testified that the driver, the defendant, was not then breaking any laws, nor was there any cause to arrest him. The officer pulled behind the defendant's car, and a second police car, flashing its Mars lights, pulled up. The defendant got out of his car while two uniformed police officers walked toward him. The defendant testified that the police asked him for his driver's license, which he gave to the officer. Upon reaching the defendant, one of the officers asked the defendant if he would go to the police station to help get "a matter cleared up." The defendant answered, "Sure." No other questioning occurred. The defendant was not told that he did not have to accompany the officers to the station, that he could come to the station at a later time, or that he was under arrest. The defendant testified that he did not feel free to leave because, when he extended his hand to retrieve his license from the officer, the officer told him that he could pick it up at the station. The officers returned to their cars while the defendant got back into his own car. As the defendant drove his car to the police station, one police car preceded him; the second car remained behind him. The three cars rode to the police station in this order.

Upon arrival at the police station, the defendant was directed to park his car in a parking space. According to the defendant, one of the officers parked a police car at the entrance to the driveway, thus blocking the defendant's exit. The defendant got out of his car and walked into the station while his companion remained in the car. The testimony conflicts as to whether the defendant was led into the police station or was followed by Officer Buschbacher. In either case, the officer directed the defendant to a small room where the defendant was under observation by one of the officers who stood by the door. The defendant testified that he did not feel free to leave and was not told that he could leave. The defendant, however, was not told that he was under arrest, was not touched by an officer, was not handcuffed, fingerprinted, searched, or subjected to any other arrest procedures.

A detective, Dennis Maggio, came into the interview room, where he and the defendant sat alone. The detective testified that he gave the defendant Miranda warnings and began to question him. After approximately 10 minutes of questioning, the defendant made an incriminating statement regarding an assault of a minor boy in Streamwood. Based on this, the detective considered there was probable cause to arrest the defendant and he placed the defendant under arrest and repeated the Miranda warnings. After this second set of warnings was given, the defendant made incriminating statements concerning the sexual attack of the three girls in Barrington.

A short time after Detective Maggio's interview, two officers from Barrington came to question the defendant. According to one of them, the defendant made incriminating statements regarding the Barrington incident. None of these statements was recorded or reduced to writing, and the defendant denied making any incriminating statements.

The defendant was brought to trial before a jury in the Barrington case (No. 67290). The trial court closed the trial to the public while the child victims testified. The judge allowed the victims' family members, a psychologist, and members of the media to remain in the courtroom while all others were directed to leave. In making this decision, the trial judge considered the age of the victims, the psychological impact on the child witnesses, the nature of the case, the interests of the victims' families, and the rights and interests of the defendant.

The victims, their mothers, and the interviewing officer testified to the details of the victims' complaints. There, J.L.'s, J.W.'s, and J.B.'s testimony included descriptions of the assailant, the car, and the acts of deviate sexual assault. The mothers and the officer were allowed to repeat the detailed information given by the children in addition to the fact that a complaint was made.

The defendant argued that testimony of an adult baby-sitter as to the meaning of the term "stranger danger" invaded the province of the jury. The court allowed the baby-sitter, the one to whom the children first complained of the sexual conduct, to testify concerning her knowledge of the expression "stranger danger." The baby-sitter, based on her own personal knowledge, explained that the child protection program includes a visit by a police officer, identified as "Officer Friendly," and is intended to instill in the children knowledge that the police officer is their friend. Any person whom the children do not know is a stranger, while people who were not "nice" were referred to as "stranger danger."

Further, in the Barrington case, the trial court allowed J.B. and her mother to testify to J.B.'s identification of the "stranger danger" in a newspaper. J.B. testified at the trial that the assailant had curly hair and a moustache and that she had seen a picture of the "stranger danger" in a newspaper that was on her kitchen table. J.B. was shown the picture in court and identified a man in the picture as resembling the man who had been in the car. The man in the picture was the defendant. Both J.B. and her mother were cross-examined.

After a verdict of guilty on all charges at the trial, the defendant was sentenced to 25 years' incarceration for deviate sexual assault and 3 years' incarceration, to be served concurrently, for unlawful restraint.

Following a bench trial in the Streamwood case, the defendant was found guilty of one count of deviate sexual assault and two counts of aggravated indecent liberties with a child. In light of the prior convictions, the defendant was sentenced to a statutory extended sentence for a brutal and heinous crime of 45 years to run concurrently with the 25-year sentence.

The appellate court reversed the convictions and remanded for a new trial. The court held that the stop of the defendant's car constituted a warrantless arrest without probable cause. (171 Ill.App.3d at 48, 121 Ill.Dec. 25, 524 N.E.2d 1073.) Too, the court adjudged that detention of the defendant for interrogation was without probable cause and...